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FRANKS INV. CO. LLC v. UNION PACIFIC R. CO.

No. 08-30236.

593 F.3d 404 (2010)

FRANKS INVESTMENT COMPANY LLC, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD CO., Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

January 6, 2010.

Attorney(s) appearing for the Case

Warren W. Harris (argued), J. Brett Busby, Jeffrey L. Oldham, Bracewell & Giuliani, L.L.P., Houston, TX, John M. Madison, Jr., Wiener, Weiss & Madison, Shreveport, LA, Scott C. Sinclair, Sinclair Law Firm, Bossier City, CA, for Plaintiff-Appellant.

William Hector Howard, III (argued), Alissa Jean Allison, Kathlyn G. Perez, Paul Lee Peyronnin, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, Richard P. Bress, Maureeen E. Mahoney, Latham & Watkins, L.L.P., Washington, DC, for Defendant-Appellee.

Evelyn G. Kitay (argued), Surface Transp. Bd., Washington, DC, for Amicus Curiae, Surface Transp. Bd.

Douglas G. Caroom, Bickerstaff, Heath, Delgado & Acosta, L.L.P., Austin, TX, for Amicus Curiae, Texas Farm Bureau.

Garrick Brandon Pursley, University of Texas School of Law, Austin, TX, for Amicus Curae, Constitutional Law Scholars.

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, BARKSDALE, GARZA, BENAVIDES, STEWART, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The question before the en banc court is whether the preemption provision of a federal statute preempts a state law possessory action filed by a landowner to preserve a long-existing crossing over railroad tracks. We conclude that this landowner's state law action, removed to federal court based on diversity of citizenship, is not preempted. Consequently, we REVERSE the district court and REMAND for adjudication of the merits...

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